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Case number 11-1273 at L, DirecTV, Inc.

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Petitioner vs. National Labor Relations Board.

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Mr. Appleby for Petitioner, MassTech, Advanced Technologies.

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Mr. Fritz for Petitioner, DirecTV, Inc.

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Mr. Callahan for Respondent and Mr. Ginsberg for Amicus AFL-CIO.

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Good morning.

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I'm Gavin Appleby.

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I'm here on behalf of Mass Tech.

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Appreciate your time this morning, Your Honors, and I will try to make this relatively brief if I can.

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It's a complicated case.

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A little bit of background to talk about in terms of why we're here, but before we do that, one quick housekeeping question.

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As you're probably aware from the Noel Cannon cases, a lot of the NLRB cases got held up for a while.

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This is one of those.

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This is a brief profile back in early 2013.

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And I say that just because there are a couple of new cases from this court that actually have some relevance here.

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I'm going to reference some of those today, but we are also just, to make things easier for the court, going to file a very brief statement, not argumentative, just to reference the new cases later today.

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So anyway, beyond housekeeping, let's actually talk about the case.

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The concerns that are here in this particular instance relate specifically to what the NLRB did when it reversed an administrative logic.

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The issues related to this case steer down from the Supreme Court's decision in Jefferson's standard, which obviously everybody's talked about in their briefs.

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The concerns that Mazdaq has, and DirecTV as well, and they can speak for themselves, are effectively that the NLRB did not properly evaluate Jefferson's standard, did not properly apply it.

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And in fact, there's more concern in that, in the sense that if you look at the NLRB's brief and its decision, in effect it's trying to actually change the standards that are appearing in Jefferson's standard.

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Jefferson Standard specifically focuses on three things.

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It focuses on whether behavior is disloyal, reckless, or there's malicious untruth involved.

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If you look at the NLRB case, what you will focus on and what they focused on is a lot of discussion about maliciousness.

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We're concerned because that is not what Jefferson Standard said, and specifically it's not what this Court has said in several cases that we've cited in our brief that I'll talk about in just a minute.

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There's also a concern relative to the standard that should be applied.

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They keep referring to an intent to be malicious.

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And the intent isn't a subjective standard as they framed it.

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But this court has very clearly said that Jefferson's standard actually applies an objective standard relative to the question of intent.

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That intent is not the real focal point.

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The question is what happened and how far did it go as to what happened.

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Separately, I want to talk, as my time gets closer to the end, on the issue of credibility determinations.

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There is a very big concern in this particular case that the NLRB did not defer as it should have to credibility determinations by the administrative law judge, and in fact very specifically made determinations a fact that are absolutely contrary to the analysis that was done.

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Granted the board's got discretion, granted the board's got some ability to say we see the facts differently.

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What the board doesn't have is the ability to make credibility determinations.

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And that effectively is what they did in this particular situation.

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I don't want to spend a lot of time on the facts, but I do want to talk in general what happened, because I think it's helpful to understand the movement that occurred in this particular case.

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Effectively, after Maastat changed its compensation system, there was a strong reaction, as you probably know from reading the briefs, and very strong.

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There were a couple of incidents occurred where groups, large groups of installers

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effectively challenge management, and there were at least two lengthy meetings that occurred, one in a parking lot, one in a conference room, regarding these situations.

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Nobody got fired over that.

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Nobody got disciplined over that.

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They were somewhat heated in regard to the meetings.

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But the difference, and the reason why this case is so important and fits under Jefferson Standard as the Supreme Court put it out, is because, in effect, what really happened here was the technicians moved their whole analysis from their ripping us off to their ripping the consumers off.

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And when that changes, that's what brings Jefferson Standard into the light of the situation.

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That all occurred when they went on television, and effectively then at that point the lies were made public that they stated.

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The ALJ specifically found that there was things that were not truthful stated to the public.

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There was reckless and disloyal behavior.

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related to allegations that the technicians had to lie to consumers, that there were chargebacks that weren't correct.

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There were a variety of other things fairly well laid out by the LJ as to lies that were actually stated on the television show.

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So it's undisputed that the comments were related to an ongoing dispute.

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That's correct.

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We're not challenging that issue.

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So then when you say that the dynamics shifted from their being unfair to us to their being unfair to the consumers, your argument is that even though their comments are related to the ongoing dispute,

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comments related to dispute in a way to cast out on the quality of the services being offered, as opposed to cast out on the quality of the relationship between the employer and employee?

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Is that where you're getting at?

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Yeah, in effect, that's absolutely correct.

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And what I would say about that, to clarify slightly further, is Jefferson Standard effectively picks up with the issues

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of what happens when it goes too far.

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The fact that it's a labor dispute certainly gives it some room for people to say things that may be uncomfortable.

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But that room is obviously not unlimited.

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And there is, typically when they turn the issue to they're messing with you consumers, things change.

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And then the analysis applies about disloyalty, about recklessness.

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I don't know exactly why they're messing with you, but it seems like there has to be some room to make comments

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if they're related to an ongoing dispute that concerned the quality of services and products being offered because they might be intimately related.

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So, for example, if somebody, if the employees say, we're being grossly underpaid, and one of the consequences of being grossly underpaid, of course, is that people don't want to work here.

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The best people don't want to work here.

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And if the best people don't want to work here, of course it affects the quality of the services being offered because the best people are working somewhere else.

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In that kind of situation, it's definitely true that those comments

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concern the quality of the service being offered.

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It's also true that those comments are related to an ongoing dispute about pay.

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And would you read Jefferson's standard to say that employees can't make that kind of comment because it concerns the quality of services being offered?

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Or would you say, well, no, that's okay because of course it concerns quality services being offered, but it also concerns the ongoing pay dispute and they're intimately tied in a way that allows the employees to make that kind of proposition.

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One of the hardest parts, I think, about NLRB analysis and political law generally is that, take sexual harassment as an analogy, there's always a line you cross.

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And the question is, when do you cross that line?

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In this particular instance, we do think that there are statements that could have been made that would have not crossed that line.

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But I don't think there's any question that the statements that actually were made did cross that line.

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And I think Jefferson's standard and this court's decision in the Edna Cut both would support that.

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where Indicott, for example, a situation also talking about an employee who's taken statements about his employer that, if not certainly true, certainly were reckless and disloyal about management not having it together.

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gaps in terms of what the company presented and why the company wasn't the company that should have been presented to the consumers, and this court found that went over the line.

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So I do think you're absolutely right that there are certain things that can be said, but at some point that goes away because you've gone too far.

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And what's, what goes, what statements in this case bring it within the scope of endicott?

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Because if an endicott as you describe it, the complaint was, well, the, the business is being tanked.

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Statements to that effect.

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What are the statements here that go,

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only to the quality of the service or product being offered divorced from any connection to the ongoing labor dispute?

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The problem in this case is that they actually took it to the point where there were direct lack of truthful statements, false statements made.

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They were made about charges that the consumers had to spend, for example.

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One of the charges, one of the things they said in the television show was that customers had to pay for certain services that wasn't true.

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They did not have to pay for services

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The issue was about inserting the telephone lines in.

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The services only had to be paid for in the very acceptable circumstances of someone who wanted it hidden behind the wall, as opposed to putting a plug in where the wall is.

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But they said they had the consumer had to pay for that.

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The technician said that they get charged back every time that there's not a telephone line installed.

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That is not true.

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In fact, they only got charged back if they didn't cover 50% of the line.

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Well, I thought you were focusing on what the disloyal statements as opposed to the untrue statements.

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Well, and I do think there's both in that context.

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Effectively, if you, and I didn't bring it with me, obviously, because I have a short period of time, but

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I'm hoping that the panel will actually see the video, which we've provided as an exhibit, because it's very telling in the manner that's promoted in there why this is so bad.

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This show was a show intentionally set up, and it's part of a series of variety shows.

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One of those shows that says they're at the get-you consumers.

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The whole flavor is to that level.

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And if you watch it, you will definitely get a feel for that.

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And you can say something may just simply be untrue, but the way in which it was presented also makes it in fact disloyal.

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So one of the things, go ahead.

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I wanted to go back to, you started by saying that the board could not reject the ALJ's credibility finding.

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But that, of course, is not exactly what our precedent says.

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And I may have stated that a little strongly, but certainly the ALJ is the one who's in that position.

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And let me touch on that if you don't mind for just a minute.

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Because I think what our precedent says is they may

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disagree with the ALJ, provided that their decision is supported by substantial evidence.

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If there's substantial evidence to support that, I agree with you.

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The problem here, though, in this case actually, it's an interesting case in that one 10-second comment effectively creates chaos in this case.

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As the comment made by the manager of MOSDIC, Chris Brown,

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when after a two-hour meeting of him trying to convince these people to put the telephone lines in and just quit complaining, when he then decides to crack a joke to try to get everybody back to work and states, what do you want me to say?

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And tell the customers the thing will blow up if you don't put the telephone line in.

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Everybody laughs.

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I'm the only person in this courtroom that was there.

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It was even funny in the courtroom.

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Long story short, the credibility issue, the ALJ specifically finds that that's a joke and not intended to carry it, that you must lie to consumers.

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The board completely ignores that.

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It is not there, had to be there, wasn't there.

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The board said it was joking, I thought.

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Well, the board said it was joking, but then it said the context of the comment is that they effectively created the basis why those people should be lying, or could be lying, and it would be protected.

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But I thought the board, I thought maybe I misunderstood what the board said, but I thought what the board said was that comment was joking, but when taken in addition to the statements by both direct TV personnel and MASTEC, I'm sorry if I'm mispronouncing the company.

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Yeah, go ahead.

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To the effect that you ought to tell them that this is required and won't work without it.

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that those statements aren't exactly true because it can work without detachment and the statement about, the joking statement about that it might blow up was sort of an appendage to the at least arguably untrue statements that had been

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urged upon the employees beforehand.

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What the board effectively said in its decision was that it realized that was stated as a joke.

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I agree with you on that.

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I don't mean to state that.

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However, they went on from there and effectively said that that allowed, in a sense, lies.

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And the lies were not malicious because of that, and the lies were

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not overstated because of that.

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And they are, in fact, not true, though.

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And the whole analysis on the statement made by Chris Brown, where the ALJ was very careful to say, to the degree that that's alleged to be the basis for these issues, that clearly was not intended in that direction.

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As a matter of credibility, I find that there was no effort by Maztec to make a statement that was untruthful and tell the employees to use the same.

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And they weren't to simply disagree with that, is our concern.

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Moving away from the credibility issue, just to talk briefly about this court's cases and why we're so concerned relative to the issue of how far down that path we were talking about they've gone.

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What Jefferson Standard clearly says is disloyal, reckless, or malicious land truth.

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What the court is focused on is something that's much more egregious than that.

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And they had moved the line, or at least trying to move the line, despite the fact the Supreme Court set the line.

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What the court says, just to give two examples, and it's brief, on page 47.

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Rather than talking about disloyalty, the board uses the term flagrantly disloyal, a term not used in any other case that I've ever seen in this area, and a term that clearly is not what the Supreme Court was reaching for when it was talking about another Jefferson Standard case.

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The board also talks about intentional misrepresentations, and maybe that's the same as malicious lack of truth, but it ignores the question of disloyalty, ignores the question of recklessness.

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In Endicott, what this court said, it used the following terms, detrimental disloyalty and recklessly untrue.

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And those are not terms.

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Those are lesser terms than the board is trying to use.

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There's also not a question of subjectivity here.

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The question is, is this across the line from the objective standard?

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And the Hormel case that we've cited in our brief in this court basically says exactly that.

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So can I ask you a question about Endicott first and then Hormel?

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Sure.

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On Endicott,

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One thing that's interesting about Endicott is the procedural posture of that case, it wasn't reviewing a disloyalty determination made by the board.

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Because the board, in fact I think the court's point was, the board just didn't say anything about disloyalty.

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It can't have the standard that encompasses both untrue statement and disloyalty.

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But then it only did work on untrue, it didn't do any work on disloyalty.

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And so from that standpoint, when the court is rendering its decision on disloyalty, it's by definition not reviewing a board determination as to disloyalty.

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So we didn't have before it this elaboration of disloyalty, which, as you rightly say, is flagrantly disloyal, wholly incommensurate with.

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So the Endicott Court wasn't looking at that standard at all, because the board hadn't talked about disloyalty at all.

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It was just sort of

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stating in the first instance its own interpretation of disloyalty without the benefit of a board gloss on.

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I think you can argue that Endicott wasn't the same case from the perspective of the facts that led to the analysis like you're questioning in terms of different cases have loyalty being a factor and other cases having lack of truthfulness being a factor.

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Right, right.

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I understand that that's a consideration.

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I do, I think, though, that the Endicott terms and the way the court evaluated the Endicott case, if applied here in general, would lead to a different result than the board case.

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Uh-huh, okay.

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Just real quickly, two cases that I wanted to talk about that are new, one from just 2015.

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It's the AT&T T-shirt case, Southern New England telephone.

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And it's a case that is not exactly on the same standards.

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It's a T-shirt case.

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But the analogy is there.

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And this is what this court said about that case.

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Common sense sometimes matters in resolving legal disputes.

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No company, at least one that's interested in keeping its customers, presumably wants its employees walking into people's homes wearing shirts that say, inmate and prisoner.

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But the NLRB rule that AT&T committed an unfair labor practice.

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While it's a t-shirt, this case is very similar to that, in that ultimately television walks into your home, too, and exactly in this case, had the same impact those t-shirts would have had.

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Finally, and I'll quit, I know my time is about to be up, but going back to the credibility issue for a second, Judge Ron actually wrote very recently in 2013 in Flagstaff Medical Center the following.

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At oral argument, the board warned us against second-guessing its expertise, where we know nothing about the tone of voice that was used when making a contested statement or the body language accompanying it.

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But of course, the person entrusted with evaluating witness credibility, the LJ, articulated his judgment about the factual record by finding the atollary violation.

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We believe that language is very applicable for this situation.

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All right.

[00:18:17] Speaker 05:
Good morning, Your Honors.

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I'm Jonathan Fritz on behalf of DirecTV.

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I'd like to reference some of the cases that Mr. Appleby referenced, the Endicott case, the Hormel case.

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uh... but also the first county and and percent publishing cases all of those cases this court rejected the board's interpretation of the scope of protected activity and what the board is doing in this case is not only in hearing to its interpretation as to the scope of protected activity it is extending that beyond the employer-employee relationship uh... direct tv in this case was not the employer of the employees

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DirecTV was not even alleged to be a joint employer of those employees.

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DirecTV was Mostec's customer.

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The employees had a dispute certainly with Mostec about its compensation policy, but DirecTV did not dictate how Mostec compensated its employees.

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DirecTV only required that Mostec connect at least 53% of receivers to a phone line.

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That was a reasonable goal, there were legitimate reasons for that goal, and DirecTV did not require that Moztech change its compensation policy in response to that goal.

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The employees, however, did not confine their speech to their compensation dispute with Moztech.

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They went to the television station in DirecTV trucks, wearing DirecTV uniforms,

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And they intact the integrity and the business practices of direct TV.

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as the administrative law.

[00:19:59] Speaker 03:
So when they go on site to actually do an installation, are they wearing DirecTV uniforms and DirecTV trucks?

[00:20:08] Speaker 03:
Yes, Your Honor.

[00:20:08] Speaker 03:
And that's fine.

[00:20:09] Speaker 03:
That's perfectly fine with DirecTV.

[00:20:11] Speaker 05:
Yes, Your Honor.

[00:20:12] Speaker 05:
The point I'm making is that they chose to go to the television station, not in their civilian clothes, if you will.

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They chose to go in DirecTV trucks with DirecTV uniforms, thereby making DirecTV

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the focus of their remarks.

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And I take it what they're doing is it's part and parcel of the notion that the speech they're engaged in is commensurate with the employee grievance that they have and the best way they can make that happen is to not show up in their civilian clothes because if they showed up in their civilian clothes it would look like something different.

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So what they're doing is they're saying this is me as the guy or whether it's a he or she who goes to install your equipment and now I'm as an adjunct to that

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carrying on my complaint.

[00:20:56] Speaker 05:
Well, Judge Shrinivastava, if the employees had gone there and said, we have a dispute with Maztek about our compensation, if that's all that happened, that would be a much different case.

[00:21:07] Speaker 05:
But they went there not to say, we have a dispute with Maztek, and to seek the public support in their compensation dispute with Maztek.

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The overall tenor of that broadcast was,

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an attack on DirecTV as a customer, and an attack on DirecTV's business practices, not the compensation dispute.

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So it was not speech that was limited to their employer.

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It was not limited to the issue of compensation.

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And it purported to be in the public interest.

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It was not an appeal for the public to support the employees in their own self-interest in changing the compensation policy.

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They were purporting to be warning the public

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not to do business with DirecTV because they claimed that DirecTV had told them to lie to the consumer and public.

[00:21:57] Speaker 07:
So the board looked at those facts, though, in the context of DirecTV was not just one of many customers.

[00:22:08] Speaker 07:
It was the customer in the Orlando market.

[00:22:13] Speaker 05:
That's correct, Your Honor.

[00:22:14] Speaker 07:
So furthermore,

[00:22:16] Speaker 07:
what was it called, a training video?

[00:22:19] Speaker 05:
Yes, Your Honor.

[00:22:20] Speaker 07:
Prepared by DirecTV was, as well as one of the men who's appeared, a DirecTV employee.

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stating it's all direct TV.

[00:22:35] Speaker 07:
I mean, so in this context, it's not just a mere customer, but it's a customer who's very much involved in what's going on and what the demands are that are being made on the employer.

[00:22:48] Speaker 07:
Isn't that correct?

[00:22:49] Speaker 05:
Judge Rogers.

[00:22:50] Speaker 07:
I mean, let me put it this way.

[00:22:52] Speaker 07:
Isn't there substantial evidence in the record to support that view of the context?

[00:22:58] Speaker 05:
Well, Judge Rogers, the video, the point of the video was simply for DirecTV to say to any contractor, it was not just for Mazdeck or its employees, but to say to any contractor, this is why it is important to connect the receiver to a phone line.

[00:23:14] Speaker 05:
The equipment won't work the way we want it to work.

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won't have all the services and functions unless it's connected.

[00:23:21] Speaker 05:
The video didn't say anything about compensation.

[00:23:23] Speaker 05:
It didn't say anything about any other terms and conditions of employment.

[00:23:27] Speaker 05:
It was merely the customer's direction to the contractor and the contractor's employees about how DirecTV wants these installations to be done.

[00:23:37] Speaker 07:
And what about the DirecTV employees?

[00:23:40] Speaker 05:
There were DirecTV employees in that video, explain why.

[00:23:43] Speaker 07:
No, I mean at the meeting.

[00:23:45] Speaker 05:
There were no DirecTV employees at the meeting.

[00:23:48] Speaker 05:
In terms of, if you're referring, you're on it to the statement about the receiver blowing up, that was misattributed by the board to a DirecTV employee, Scott Brown, the person who made that statement.

[00:24:01] Speaker 08:
Was a NASDAQ employee.

[00:24:02] Speaker 05:
Was a NASDAQ employee, Christopher Brown.

[00:24:04] Speaker 03:
So what the DirecTV employees themselves did was video.

[00:24:10] Speaker 03:
And the video told the contractors to tell their technicians to tell customers that the phone line was a mandatory part of the installation and needed for the equipment to function.

[00:24:22] Speaker 05:
That's correct, yeah.

[00:24:24] Speaker 05:
And so and again the point of that is that that is part of the installation.

[00:24:30] Speaker 05:
That record he wants the contractor to perform.

[00:24:35] Speaker 05:
And so all the direct he is is telling the contract and its employees is this is.

[00:24:40] Speaker 05:
the standard part of the installation we wanted to be done in order for the equipment to function the way it's supposed to function.

[00:24:47] Speaker 05:
But again, it has nothing to do with how the employee will be compensated.

[00:24:50] Speaker 05:
As a result of that, it is simply a direction to perform the work that DirectDV wants its contractor to perform.

[00:24:59] Speaker 03:
What does it mean as a mandatory part of the installation if it's not, in fact, technologically necessary for the product to work?

[00:25:05] Speaker 05:
It's part of direct TV pays Maztec to do so it's part of the standard installation package.

[00:25:13] Speaker 05:
It's free to the customer as long as the customer doesn't want some custom work, but it's mandatory in the sense that it's part of the basic installation package Maztec and there's there's a

[00:25:26] Speaker 05:
a document in the record at page 509 of the Joint Appendix, which is the worksheet that MozTech would give to customers, which would indicate that the phone line installation was part of the basic installation package, and then any custom work was sort of below that, below the line.

[00:25:43] Speaker 05:
So it was mandatory in the sense that that's what DirectDV was telling MozTech.

[00:25:49] Speaker 05:
should be done as part of every installation because although you could still get a signal on the satellite receiver, you couldn't do a lot of other things both presently and in the future in terms of the full functionality of the system.

[00:26:06] Speaker 05:
I see my time's up, so I'll sit down.

[00:26:09] Speaker 05:
Thank you, Your Honors.

[00:26:10] Speaker 07:
Thank you.

[00:26:31] Speaker 02:
Good morning, Your Honors.

[00:26:32] Speaker 02:
Douglas Callahan on behalf of the National Labor Relations Board.

[00:26:35] Speaker 02:
I'd like to focus the court's attention on the fact that the Maztech technician's statements in that broadcast did not go beyond what was necessary to communicate the scope of their labor dispute.

[00:26:45] Speaker 02:
They focused on two things.

[00:26:47] Speaker 02:
Repeatedly, they went back to two things, the charges, the back charges, $5 for every non-responding receiver, and number two, the fact that management had instructed them to make certain misrepresentations to customers, including that the receiver wouldn't work when, in fact, it would without a phone line.

[00:27:04] Speaker 02:
What's important is what they also did not say.

[00:27:07] Speaker 02:
They did not, like the person in Endicott, like employee white in Endicott, make any sort of gratuitous insult directed at management.

[00:27:15] Speaker 02:
They did not make an appeal to the customers of DirecTV to stop using DirecTV services.

[00:27:20] Speaker 02:
And they did not attempt to injure Mastec or DirecTV's reputation beyond what was necessary to communicate the essence of their labor dispute.

[00:27:32] Speaker 06:
Now, what this means is that it would be a problem for a business's representation to say to consumers, this company lies to you, this company

[00:27:48] Speaker 06:
forces us to charge you for things that you don't need.

[00:27:52] Speaker 06:
This company forces us to lie.

[00:27:55] Speaker 06:
If we don't lie to you, we don't get paid.

[00:27:57] Speaker 06:
You don't think that would be a problem?

[00:27:58] Speaker 02:
There's no question that it's prejudicial, but there's also no question that the mere fact that it's prejudicial doesn't resolve this issue.

[00:28:04] Speaker 02:
If you look at, this is not a sparse area of the law.

[00:28:08] Speaker 02:
There are a lot of cases in this area of the law interpreting Jefferson's standard.

[00:28:11] Speaker 02:
It's not just Endicott.

[00:28:12] Speaker 02:
There's Circle Bindery from the First Circuit, Misericordia from the Second Circuit, Sierra Publishing from the Ninth Circuit, and then Learned Hand's opinion from the Second Circuit and Peter Kahler-Cohler.

[00:28:22] Speaker 02:
And in all of those cases, they make clear that the mere fact that conduct is prejudicial to an employer does not remove it from the Act.

[00:28:28] Speaker 02:
That's not consistent with the way the Act is structured.

[00:28:31] Speaker 02:
All sorts of labor activities are prejudicial to the employer.

[00:28:34] Speaker 03:
And that goes to... So I think that there's a potential line to be drawn, as your colleague on the other side was doing, I think, between statements that are definitely prejudicial in the sense that they say this employer

[00:28:50] Speaker 03:
should be strongly condemned because it's being terribly unfair to us, the employees.

[00:28:55] Speaker 03:
That's undoubtedly prejudicial to the employer.

[00:28:57] Speaker 03:
And if a consumer is interested in that kind of criticism, then the consumer will be concerned about that employer because they think that this is an employer that's being totally unfair to the employees.

[00:29:08] Speaker 03:
I'm going to look elsewhere.

[00:29:12] Speaker 03:
But then also, that's one type of statement that could be made.

[00:29:15] Speaker 03:
And then you could take the statement and say, and this employer services are also bad.

[00:29:20] Speaker 03:
or this employer's product is also bad.

[00:29:22] Speaker 03:
So you could attempt to draw a line between those two kinds of scenarios.

[00:29:27] Speaker 03:
Now, I take it your argument is that, yes, I think logically it's possible to draw that line, but legally that's not where the line is drawn because some statements that are bound up in a labor dispute can call into question the quality of services or products and still be protected.

[00:29:46] Speaker 03:
And then if that's true, I guess my question is, what's the line then?

[00:29:50] Speaker 03:
Suppose that is true, that you can make statements that criticize the employer-quad product service, not just quad relationship with employees, to some extent, and still maintain the protections of the act.

[00:30:02] Speaker 03:
But then there are some statements that are so disloyal that even if they're bound up in the context of the labor dispute, they still

[00:30:09] Speaker 03:
go beyond the pale and they're actionable because they fall within the Jefferson standard.

[00:30:14] Speaker 03:
Sure.

[00:30:16] Speaker 03:
How would you characterize that line?

[00:30:17] Speaker 02:
Well, it's not an easy bright line to be found in the case law or one that I can offer to you now.

[00:30:23] Speaker 02:
And there's no easy bright line rule to be distilled from Jefferson standard.

[00:30:27] Speaker 02:
Jefferson standard itself was certainly set on the facts of Jefferson standard certainly lie outside of the protection of the act.

[00:30:35] Speaker 02:
But Jefferson standard did not lay down some sort of

[00:30:39] Speaker 02:
some sort of very definite methodical approach for analyzing these cases exactly and didn't draw that line.

[00:30:47] Speaker 02:
But the line has been drawn on a case-by-case basis by the board and the courts.

[00:30:51] Speaker 02:
There are certainly cases in which conduct has been deemed unprotected.

[00:30:55] Speaker 02:
Mountain Shadow Golf is a very important case for this issue.

[00:31:01] Speaker 02:
Not only the First Circuit's opinion in 2008, but also the board's decision in 2007 in which the board found that certain hand bills

[00:31:08] Speaker 02:
across that line and began to resemble the hand bills in Jefferson's standard and therefore lost the protection of the act.

[00:31:14] Speaker 02:
I'd also point the court toward American Arbitration Association.

[00:31:17] Speaker 03:
But is that because, because one line that can be drawn is as in, you could say that Jefferson's standard involved, at least with the unprotected hand bills, hand bills that made no connection whatsoever to an ongoing labor issue.

[00:31:27] Speaker 03:
So that's one, you could draw that line.

[00:31:30] Speaker 03:
But then as I understood the board's position and the board's cases, that's not the line that the board draws because there are some situations in which statements are connected to an ongoing labor dispute, but still,

[00:31:44] Speaker 03:
cross the threshold and become so disloyal that they're actionable by the employer?

[00:31:48] Speaker 02:
For example, in the American Arbitration Association, where the letters that were sent to customers actually ridiculed the employer.

[00:31:54] Speaker 02:
They were incommensurate with the employee's dispute and unnecessarily tarnished the employer's reputation.

[00:32:00] Speaker 02:
Unnecessarily tarnished.

[00:32:01] Speaker 02:
That's language from the First Circuit's decision, I believe, in Mount Desert Island.

[00:32:05] Speaker 02:
I'd also point the court toward Coca-Cola bottling, 186 NLRB 1050, five-star transportation, 349 NLRB 42, which I mentioned before.

[00:32:14] Speaker 07:
In other words, one, just looking at the facts of this case, the board points to the fact that it's undisputed that the employees did not have a chance to see

[00:32:34] Speaker 07:
the TV program before it was aired.

[00:32:40] Speaker 07:
And they had no control over what the TV station was going to do with the interview.

[00:32:54] Speaker 07:
But the argument is that they were there at the interview and they could have said, well, no, it's not five.

[00:33:04] Speaker 07:
of 52 dollars every time.

[00:33:06] Speaker 07:
It's only when you want some customized work.

[00:33:10] Speaker 07:
But our basic concern is the following.

[00:33:13] Speaker 07:
In other words, is there some obligation, even in the context of a labor dispute, that the employee not go beyond what is necessary

[00:33:29] Speaker 07:
in terms of accurately stating what the dispute is about, where the employee knows that the TV person is elaborating in a false

[00:33:45] Speaker 07:
making a false statement.

[00:33:47] Speaker 02:
There is no evidence that the employees knew the TV station was going to make false representations.

[00:33:53] Speaker 02:
I think the presumption is quite the opposite.

[00:33:55] Speaker 02:
This is a mainstream TV station.

[00:33:57] Speaker 02:
And the employees went to them believing that this TV station would do the decent journalism that it normally does.

[00:34:03] Speaker 02:
What I think we really have to avoid here is chilling employees' speech by claiming that these employees who, by going to a third party, are necessarily giving up control over their message to some extent.

[00:34:15] Speaker 02:
That by doing so, they become responsible for every single editorial decision that's made by Channel 6 in this instance.

[00:34:22] Speaker 02:
Employees have an undisputed right to go to third parties, and that includes to newspapers.

[00:34:26] Speaker 02:
And if you go to a newspaper, or perhaps to a more sensational outlet like a news channel, there's going to be some loss of message.

[00:34:36] Speaker 02:
And the news channel is going to hone in on what it finds important.

[00:34:39] Speaker 02:
There are limits on what the news channel can say.

[00:34:41] Speaker 02:
The news channel holds itself out as a respectable journalistic organization.

[00:34:45] Speaker 02:
It has certain standards it has to comply with.

[00:34:48] Speaker 02:
It's liable in libel for any misstatements that it makes.

[00:34:52] Speaker 02:
But these employees, after having tried as hard as they could to resolve this dispute with their employer, when they finally felt compelled, when they felt it was necessary to bring their dispute to a third party, and they went to Channel 6, there was nothing inherently disloyal about that.

[00:35:12] Speaker 02:
And the fact that they, in doing so, were giving up some control over their message,

[00:35:19] Speaker 02:
does not mean that what they were doing was disloyal.

[00:35:22] Speaker 02:
That's inherent.

[00:35:22] Speaker 02:
That kind of giving up of control is inherent in appealing to third parties through a newspaper, through a TV channel, what have you.

[00:35:31] Speaker 06:
So is it the position of the board that employees are protected no matter what the

[00:35:40] Speaker 06:
conduit that they use.

[00:35:43] Speaker 06:
So they go to a TV station and to a reporter who in fact does a specific kind of reporting.

[00:35:53] Speaker 06:
And that reporting is sort of skullduggery by corporations.

[00:35:58] Speaker 06:
And that's who they appeal to.

[00:35:59] Speaker 06:
And that's who they want to talk to.

[00:36:01] Speaker 06:
And they know that.

[00:36:02] Speaker 06:
And so is the board's position that no matter who you appeal to, no matter what kind of

[00:36:10] Speaker 06:
program it is, the employees continue to have the protection of the Act, no matter what.

[00:36:17] Speaker 02:
It's imaginable that there could be some factual circumstance where the journalist or, you know, in our current age, the blogger, was so unreliable that the employees would be losing the protection of the Act by going to them.

[00:36:28] Speaker 02:
But that's not this case.

[00:36:29] Speaker 02:
This is Channel 6, and I'd ask the court to, like Mass Tech Council advised,

[00:36:34] Speaker 02:
look at this newscast.

[00:36:36] Speaker 02:
It's not a crazy newscast.

[00:36:37] Speaker 02:
It's not Pulitzer Prize winning journalism.

[00:36:41] Speaker 02:
But it's the main, it's the bread and butter of American journalism today.

[00:36:47] Speaker 02:
It does, there is admittedly a shift in focus in the newscast from the pay practices to the misrepresentations.

[00:36:57] Speaker 02:
But number one, it needs to be remembered that these misrepresentations that these employees were counseled to make by mass tech management, those misrepresentations were part and parcel of their labor dispute.

[00:37:09] Speaker 02:
They had a dispute over the back pay charges.

[00:37:11] Speaker 02:
They went to management and they said, how can we eliminate these back pay charges?

[00:37:16] Speaker 02:
And management's response to them, in addition to other sorts of more or less deceptive practices, was to tell customers lies.

[00:37:26] Speaker 02:
was to tell them that this responder would not work if it's not hooked up to a phone line, or that the connection of a phone line was mandatory, when in fact it wasn't, and these technicians would install receivers without phone lines all the time.

[00:37:40] Speaker 06:
Those... Council just pointed out that what they mean by mandatory may be somewhat different from what you're implying, which is not to say that your receiver wouldn't work.

[00:37:50] Speaker 06:
but that the contract between MassTech and DirecTV made that mandatory.

[00:37:55] Speaker 02:
It would have been great if DirecTV had said that then in the instructional video.

[00:37:59] Speaker 02:
But if you look at that instructional video, a transcript of which is at appendix page 431, you'll see that Steve Crawford from DirecTV never mentions that subcontractual arrangement between MassTech and DirecTV.

[00:38:10] Speaker 02:
He says, you're going to put it back on the customer.

[00:38:13] Speaker 02:
You're going to say that it's mandatory, and they've got two options.

[00:38:16] Speaker 02:
They can either install the phone line, or we can run a wall fish or a wireless jack.

[00:38:21] Speaker 02:
DirectTV made no attempt to bring out that particular subtlety.

[00:38:24] Speaker 02:
In fact, he was trying to imply something quite else to customers.

[00:38:27] Speaker 06:
They did, but these employees didn't make any attempt to bring out the subtleties in their labor dispute either.

[00:38:34] Speaker 02:
I don't believe there's evidence for that, Your Honor.

[00:38:39] Speaker 02:
One of the other things that's apparent when you look at this news broadcast is that these employees' statements have been heavily, heavily edited.

[00:38:49] Speaker 02:
The journalist cuts these employees off in mid-sentence in many cases.

[00:38:53] Speaker 02:
And what's left, these partial statements from the employees in this highly edited newscast, falls far, far short of reaching the actual malice standard.

[00:39:05] Speaker 02:
I would argue the actual malice standard was treated by the Sixth Circuit in the case of Joe Leath, which is mentioned in the board's decision.

[00:39:13] Speaker 02:
And the Sixth Circuit reversed the board, finding that there wasn't sufficient evidence of actual malice in that case.

[00:39:20] Speaker 02:
The board had found actual malice.

[00:39:21] Speaker 02:
The Sixth Circuit said there wasn't enough.

[00:39:23] Speaker 02:
And I would argue that in this case, there was so little evidence of actual malice that if the board had found the other way,

[00:39:30] Speaker 02:
The board would have been reversed on appeal by this court.

[00:39:33] Speaker 06:
But that's a question that I want to ask you because it seems to me that the rule that the board articulated based on Jefferson's standard was

[00:39:44] Speaker 06:
Disjunctive.

[00:39:46] Speaker 06:
In other words, it said, you know, disloyal or reckless or untrue.

[00:39:53] Speaker 06:
And the board here focuses only on untrue, right?

[00:39:57] Speaker 06:
And maliciously untrue.

[00:39:59] Speaker 06:
That's untrue, Your Honor.

[00:40:00] Speaker 06:
Well, OK, then correct me if I'm wrong.

[00:40:02] Speaker 06:
But that's what they seem to be doing is focusing on the truth or what they view as the truthiness of these statements.

[00:40:11] Speaker 02:
The board discusses actual malice on page 5 of its decision.

[00:40:15] Speaker 02:
It then shifts into a discussion of disloyalty on page 6 of its decision.

[00:40:20] Speaker 02:
I'm glad that you brought up the articulation of the board standard, the Mountain Shadow Golf Standard.

[00:40:27] Speaker 02:
It's not put forth by the board as a test in which each one of the prongs is airtight and self-sufficient.

[00:40:41] Speaker 02:
In other words, what the board was trying to distill was the teaching of Jefferson standard.

[00:40:48] Speaker 02:
Jefferson standard itself, however, itself is a case that doesn't present a clear approach

[00:40:57] Speaker 02:
a clear methodological, step-by-step, multi-pronged approach to evaluating disloyal comments.

[00:41:03] Speaker 02:
The board, in formulating the Mountain Golf Shadow Standard, was just trying to heuristically indicate what's relevant to the court's analysis.

[00:41:12] Speaker 02:
But, for example,

[00:41:13] Speaker 02:
The fact that the first prong references a labor nexus does not mean that the labor nexus is irrelevant to some of the issues under the second prompt.

[00:41:22] Speaker 02:
For example, disloyalty.

[00:41:24] Speaker 02:
What you see reflected in the case law is that in analyzing that disloyalty prompt, courts and the board have always looked to just how tight that labor nexus is.

[00:41:33] Speaker 03:
Yeah, it comes back in.

[00:41:34] Speaker 03:
I mean, it's kind of interesting that this nexus is

[00:41:37] Speaker 03:
the exclusive province of prong one.

[00:41:41] Speaker 03:
But then, in other words, that prong one is only about nexus.

[00:41:45] Speaker 03:
But then prong two, nexus also creeps back in, because I think the board's gloss on, at least on the disloyalty component, is flagrantly disloyal, wholly incommensurate with any agreements which they might have.

[00:41:55] Speaker 03:
And when you're doing wholly incommensurate, it necessarily comes back into nexus, since the nexus comes back in.

[00:42:03] Speaker 02:
I'm in a whole agreement with you, except for the fact that it's not creeping back in.

[00:42:07] Speaker 02:
That's always been there.

[00:42:08] Speaker 02:
And the board never, I think, separated.

[00:42:10] Speaker 03:
Well, it's always creeping back in.

[00:42:11] Speaker 03:
I guess I'm not making a statement about when it happened.

[00:42:13] Speaker 03:
I'm just saying that it comes back in because of the way the board has applied the disloyalty prong, the disloyalty strand of prong to.

[00:42:21] Speaker 02:
That's exactly right.

[00:42:22] Speaker 02:
And I think one of the things that this case presents an instance in which the employees' statements are actually so tightly tied to their labor dispute

[00:42:31] Speaker 02:
that they only said what was necessary to communicate their labor dispute.

[00:42:34] Speaker 02:
And if you hold that their statements were unprotected,

[00:42:38] Speaker 02:
You're essentially saying that the act sanctions the termination of employees for doing nothing more than publicizing their labor dispute through a third party.

[00:42:46] Speaker 02:
And I think that can't be a correct result.

[00:42:48] Speaker 03:
So can I ask about the application of the disloyalty strand of Prong 2, specifically with respect to the intent component?

[00:42:57] Speaker 03:
Because the board's decision, as you say on page six, talks about disloyalty.

[00:43:01] Speaker 03:
And there's three.

[00:43:03] Speaker 03:
points that the board makes in explaining why this statement, these statements didn't rise to the level of actionable disloyalty that would be something within the province of the employer they could terminate for cause.

[00:43:15] Speaker 03:
And one of them is intent.

[00:43:16] Speaker 03:
And what we of course have our HOMEL decision about that speaks to the question of intent.

[00:43:22] Speaker 03:
So the question for you is, and I'm wondering if there's a disagreement potentially between you and your supporting amicus on this, which is that

[00:43:28] Speaker 03:
If we assume that the intent reference made by the board in its decision is subjective intent, not as you suggest in your brief that actually what they're getting at is a bunch of objective considerations, but really that we think what the board is talking about is subjective intent.

[00:43:44] Speaker 03:
And the question is, is that at this stage of the analysis foreclosed by Hormel?

[00:43:49] Speaker 03:
Or do you have an argument that says that no, Hormel was speaking to a different question and foreclosed the use of subjective intent as to that different question.

[00:43:57] Speaker 03:
But as to this issue that's being addressed by the board here, it's OK to talk about subjective intent?

[00:44:02] Speaker 02:
Definitely the latter.

[00:44:03] Speaker 02:
Two points, one about Jefferson Standard, the second about Hormel.

[00:44:06] Speaker 02:
Jefferson Standard explicitly referenced the employee's intent and based its holding upon the employee's intent.

[00:44:13] Speaker 02:
I had referred the court to pages 476 to 477 of Jefferson Standard in which the Supreme Court said, the only connection between the hand bill and the labor controversy was an ultimate and undisclosed purpose or motive.

[00:44:27] Speaker 02:
The Supreme Court had honed in on the employee's motive.

[00:44:31] Speaker 02:
And so number one, Hormel, insofar as it contradicts that, is not controlling.

[00:44:39] Speaker 02:
But I don't think Hormel does control that.

[00:44:41] Speaker 02:
What Hormel was talking about was subjective and objective evidence of intent.

[00:44:46] Speaker 02:
In Hormel, this court said that the board had illegitimately relied solely upon the subjective professions of the discriminant himself, who said, who got up there and said, no matter where I was in the boycott, no matter what I did in the boycott, in my heart of hearts, I was not participating in the boycott.

[00:45:06] Speaker 02:
And the court said, no, you can deduce intent from objective evidence.

[00:45:11] Speaker 02:
You can look at the circumstances surrounding somebody's actions.

[00:45:15] Speaker 02:
And you can, from that, derive a finding of intent that might be wholly contrary to what that person subjectively believes.

[00:45:22] Speaker 02:
I don't think that's a novel idea in the law at all.

[00:45:25] Speaker 02:
And I think that's one of the reasons why, in that opinion, Judge Ginsburg quotes Holmes.

[00:45:30] Speaker 02:
I think it's actually kind of like a universal principle that you can deduce somebody's intent from indirect objective evidence.

[00:45:37] Speaker 02:
And that's what the Supreme Court was doing in Jefferson's standard in that passage I just quoted.

[00:45:41] Speaker 02:
And that's what the NLRB was doing in this case.

[00:45:43] Speaker 02:
The NLRB was not relying upon

[00:45:45] Speaker 02:
These employees' direct testimony on the stand saying, I did not intend to harm the company.

[00:45:52] Speaker 02:
You won't find that evidence actually in the record.

[00:45:55] Speaker 02:
What the board was relying upon was the nature of the employees' statements.

[00:45:59] Speaker 02:
The employees did not get up there and try and stick it to DirecTV unnecessarily by saying, all consumers should stop using DirecTV services.

[00:46:07] Speaker 02:
DirecTV's management is going to put this business into the dirt.

[00:46:11] Speaker 02:
DirecTV is a terrible company.

[00:46:13] Speaker 02:
They said nothing like that.

[00:46:14] Speaker 02:
They said they're charging us.

[00:46:15] Speaker 02:
They're giving us a financial incentive.

[00:46:18] Speaker 02:
They're penalizing us $5 for not installing these responders.

[00:46:22] Speaker 02:
And in response to our complaints, they're telling us that we should make misrepresentations to customers.

[00:46:28] Speaker 02:
That's what they were.

[00:46:28] Speaker 02:
And so in this and from that, the board determined the board inferred that these employees primary intent was not to harm the company, but rather to publicize their labor dispute.

[00:46:39] Speaker 02:
And it did so on the basis of objective evidence.

[00:46:42] Speaker 02:
And so for that reason,

[00:46:43] Speaker 02:
I think Hormel came to the right conclusion, probably.

[00:46:47] Speaker 02:
But I think Hormel is in no tension with the board's finding in this case or with Jefferson's standard.

[00:46:54] Speaker 02:
And I believe the one sentence that Judge Ginsburg has, to the extent that the test of disloyalty always has to be objective, it's overbroad.

[00:47:03] Speaker 02:
I mean, it's a lovely sentence, but it's overbroad.

[00:47:05] Speaker 02:
It was unnecessary to decide that case.

[00:47:07] Speaker 02:
And it's inconsistent, I think, with this whole area of law.

[00:47:11] Speaker 02:
And it's not just the board that has relied upon intent in evaluating the potential disloyalty of employees' behavior.

[00:47:21] Speaker 02:
There are other courts that have done it.

[00:47:22] Speaker 02:
I know the Eighth Circuit and Greyhound Lines has.

[00:47:25] Speaker 02:
And it's also a recurrent factor in a lot of the case law in this area.

[00:47:32] Speaker 06:
But Carmel requires that objective test because it says otherwise employers could never fire disloyal employees without having liability unless they could determine correctly what their actual motivation was.

[00:47:55] Speaker 02:
But I would argue that the cases that I've cited to this court, in which the court, in which the board has found that employee statements were not protected, Mountain Shadows Golf, American Arbitration Association, Coca-Cola Bottling, Five Star Transportation, those are cases in which intent was relevant and yet the employer nevertheless was entitled to fire those employees.

[00:48:15] Speaker 03:
But I thought what Hormel was getting at was this, and this is related to the concern Judge Brown rightly raises, which is that the concern expressed by the opinion in Hormel is that unless we

[00:48:30] Speaker 03:
take into consideration objective factors.

[00:48:34] Speaker 03:
There's no way to give effect to the entitlement of an employer to fire someone for cause in a situation in which we're dealing with conduct that's presumed to be disloyal if we think that the employee was participating in that conduct.

[00:48:47] Speaker 03:
So you take as a given that the conduct is disloyal, which is after the dispute is over, you're still urging a boycott.

[00:48:53] Speaker 03:
And then the question is, is this employee participating in that conduct?

[00:48:57] Speaker 03:
Well, if you look at that purely as a subjective matter, then it becomes really problematic because, as Judge Gisborne pointed out, somebody could go to a rally wearing a t-shirt and then they could defend themselves by saying,

[00:49:05] Speaker 03:
Well, yeah, it's true I wore a t-shirt that supported the boycott, but actually, I didn't mean to subjectively support the boycott.

[00:49:11] Speaker 03:
It just was the t-shirt that was at the top of my drawer.

[00:49:14] Speaker 03:
In which case, the response is, well, that can't be right, because then the employer has no ability to take action in response to what's conceivably disloyal conduct.

[00:49:22] Speaker 03:
And the issue is whether this employee was participating in it.

[00:49:25] Speaker 03:
As to that, we can't look at subjective motivation.

[00:49:28] Speaker 03:
We have to take into account objective considerations, or else the employer has no rights at all.

[00:49:32] Speaker 03:
Whereas in this case, I didn't understand this case to be about that subsequent question about whether conduct is presumed to be disloyal, is conduct engaged in by the employee.

[00:49:43] Speaker 03:
This case has to do with the antecedent question of whether the conduct is disloyal in the first place.

[00:49:47] Speaker 03:
And as to that, it's not completely out of bounds to look at subjective intent.

[00:49:52] Speaker 03:
We can ask questions about the extent to which subjective intent can govern the inquiry.

[00:49:57] Speaker 03:
But Hormel doesn't tell us that it's completely out of bounds to look at subjective intent for purposes of this aspect of the inquiry.

[00:50:03] Speaker 03:
What it rightly tells us is you can't allow subjective intent to be a bar to an employer's ability to fire someone who's engaged in something that is disloyal conduct and would be actively disloyal assuming that the employee was in fact participating in it.

[00:50:17] Speaker 02:
The only thing that I would say is that there's a need to unstick some concepts here.

[00:50:22] Speaker 02:
Intent is an inherently subjective concept.

[00:50:25] Speaker 02:
I think the conversation is better held if we're talking about subjective and objective evidence of intent.

[00:50:33] Speaker 02:
And I think what Hormel really hones on in is that you give an employee an out in every instance if all you care about is subjective evidence of intent.

[00:50:41] Speaker 02:
Because who knows the employee's own personal heart of hearts better than the employee himself?

[00:50:46] Speaker 02:
And so I would just, subjective intent actually strikes me as a little redundant, and I would just say the question is whether intent is proved through subjective or objective evidence.

[00:50:56] Speaker 02:
If I could talk about the ALJ issue, the ALJ's determinations that the board overruled were determinations that were based on the interpretation of the video.

[00:51:07] Speaker 02:
And the video was evidence that was in front of the ALJ, but that was also in the exact same form in front of the board.

[00:51:13] Speaker 02:
The board was not reversing credibility determinations based upon witness demeanor or what happened in the courtroom.

[00:51:20] Speaker 02:
The ALJ did make credibility determinations based on witness demeanor, but those were the determinations that were against the company.

[00:51:27] Speaker 02:
The ALJ found that these employees truthfully explained what they had been told by Mass Tech Management.

[00:51:33] Speaker 02:
The ALJ found on page 16 of the decision that Maztec management had in fact told these employees that they should tell customers that responder won't work if it's not plugged into a phone line.

[00:51:46] Speaker 02:
And that credibility determination was legitimately and rightly accepted by the board.

[00:51:51] Speaker 02:
The board only reversed those determinations that were based upon this video.

[00:51:55] Speaker 02:
And of course the board had as good an opportunity to interpret that video and watch the video as the ALJ.

[00:52:02] Speaker 07:
All right, thank you.

[00:52:13] Speaker 07:
Councilor Amicus.

[00:52:16] Speaker 01:
May it please the court, Matt Ginsburg on behalf of Amicus AFL-CIO.

[00:52:20] Speaker 01:
I think it's worth, in the few minutes I have, honing in on the specifics of this labor dispute, which really helped to illustrate some of the issues that have been discussed already.

[00:52:30] Speaker 01:
Now here, the employer, Maztech, told the technicians, look, you have to connect 50%, at least 50% of these receivers, DirecTV receivers, to telephone lines.

[00:52:42] Speaker 01:
And if you don't, we're going to dock your pay by $5, not for every receiver that you don't connect that drops under 50%.

[00:52:49] Speaker 01:
But actually, for all the receivers, you don't connect in the time period.

[00:52:52] Speaker 01:
So if you use the hypothetical that Maztech provided to the technicians, you can see a technician who installs 100 receivers, 101 receivers in the month is the hypothetical, and is able to connect 50, not 51, is penalized $5 for each of those 51 receivers they can't connect.

[00:53:12] Speaker 01:
That's $255.

[00:53:13] Speaker 01:
It's a lot of money.

[00:53:15] Speaker 01:
Importantly, the technicians objected not just to the loss of pay, which was very significant, but also to the fact that they were going to be losing pay because of factors outside of their control.

[00:53:27] Speaker 01:
It's undisputed in this record that many customers didn't have landlines.

[00:53:33] Speaker 01:
And if there's no landline, the technician can't connect the receiver to a telephone line, and they're penalized for that.

[00:53:39] Speaker 01:
It's counted as part of their overall percentage.

[00:53:42] Speaker 01:
It's also undisputed that many customers did not want these telephone connections because it would allow their children to order pay-per-view programming over the remote control, and that's something that some customers simply didn't want.

[00:53:54] Speaker 01:
And it's also undisputed that some customers, even if they allowed the technician to connect the receiver to the phone line, would then disconnect it, and that would also be counted against the technician.

[00:54:05] Speaker 01:
So when the technicians raised all of these objections, Maztec didn't dispute the facts.

[00:54:10] Speaker 01:
In fact, they were under an obligation from DirecTV, as counsel has already stated, to only connect 53 percent to phone lines, which is a tacit acknowledgement that this can be a hard thing to do.

[00:54:21] Speaker 01:
Maztec didn't dispute the fact that this was difficult.

[00:54:23] Speaker 01:
Instead, they said, do whatever it takes.

[00:54:26] Speaker 01:
even if that means telling customers that it's mandatory or telling customers that the receiver won't function without the connection.

[00:54:35] Speaker 01:
The ALJ specifically found that supervisors told employees to tell customers that it wouldn't function without the connection.

[00:54:44] Speaker 01:
And again, I would draw back the court's attention to the video that was recorded by DirecTV vice presidents Crawford and Brown, that's vice president Scott Brown,

[00:54:53] Speaker 01:
which was shown to the employees in the midst of this labor dispute where the whole premise of this discussion is how to overcome the objections.

[00:55:02] Speaker 01:
This is a couple of ideas that we hear from techs on how they overcome the objections, referring to customer objections.

[00:55:09] Speaker 01:
And those ideas include telling, the first idea is not to say anything at all to the customer about the need to connect the phone line.

[00:55:16] Speaker 01:
And that contradicts Maztec's own guidance to employees that they should have a conversation with the customer planning out how the installation will go, including any custom work that might need to be done.

[00:55:27] Speaker 01:
But in addition to that, the video says, you can tell the customer that is a mandatory part of the installation, and I need it for the equipment to function correctly.

[00:55:38] Speaker 01:
And that's a quote.

[00:55:40] Speaker 01:
And I think it's within that context that when the technicians complained about their labor dispute, they were well within their rights to say, look, this pay policy is unfair.

[00:55:49] Speaker 01:
But not only is it unfair, but when we told the employer why we can't do this, they didn't

[00:55:54] Speaker 01:
quarrel with us about how hard it is to do.

[00:55:57] Speaker 01:
Instead, they said, well, just tell the customer whatever you have to tell to install the lines.

[00:56:02] Speaker 01:
And it's almost like a statement against interest by the employer that, in fact, there was some validity to the technician's objections to the pay dispute.

[00:56:12] Speaker 01:
So we think in a case like this, where the asserted critical comments are inextricably intertwined with the labor dispute itself, and this is clearly a labor dispute case, that this is easily distinguishable from Jefferson's standard, obviously, and also from Indicott, where the comments did not go to the labor dispute, but instead were costate comments about management.

[00:56:39] Speaker 03:
If we take as a given that comments are related to a labor dispute,

[00:56:42] Speaker 03:
Do you think that that means necessarily that the comments are protected?

[00:56:45] Speaker 03:
Or do you think, do you read the cases and the board's decisions to accommodate the possibility that even though the comments are related to an ongoing labor dispute, they can still cross the line and become actionably disloyal?

[00:56:58] Speaker 01:
Yes, they can still cross the line and become actionably disloyal.

[00:57:02] Speaker 01:
But I think this is a case that illustrates, I think, very well that in some cases, they are not disloyal.

[00:57:09] Speaker 01:
Even though the employer may not like the comments, to the extent they are inextricably intertwined with the labor dispute and are necessary as a means to reasonably explain the labor dispute to the public, which is protected, that this is protected activity and is not covered by Jefferson's stand.

[00:57:26] Speaker 01:
Thank you.

[00:57:27] Speaker 01:
Thank you.

[00:57:29] Speaker 07:
Council from last time?

[00:57:34] Speaker 04:
Just briefly to a couple of things and maybe starting with the issue of the credibility again and going back to the Judge Brown or to Chris Brown comment we talked about earlier.

[00:57:42] Speaker 04:
Let me actually read you what's in the decision by the board and this goes to the context of whether or not there was an effort to try to tell the employees they should lie.

[00:57:50] Speaker 04:
Was it false or not false?

[00:57:53] Speaker 04:
Uh, Braun's joking suggestion to tell customers that an unconnected receiver would blow up underscored that message, i.e., the direction to lie, as it is undoubtedly was meant to do.

[00:58:05] Speaker 04:
When you get into, as it was undoubtedly meant to do by a person who wasn't the credibility determiner, that person's very credibility determination.

[00:58:16] Speaker 04:
Relative to some other points, very quickly on the issue about the employees don't control the television spokesperson, we understand that.

[00:58:24] Speaker 04:
That said, the facts in this case are that the employees specifically stated in testimony that they saw the television person as their spokesperson.

[00:58:34] Speaker 04:
That's the term that they actually used.

[00:58:36] Speaker 04:
In addition, they're the ones that told the television station what they believe the facts were.

[00:58:40] Speaker 04:
The television station wasn't making this up.

[00:58:43] Speaker 04:
There had been a pre-meeting where these things were discussed.

[00:58:46] Speaker 04:
And then third, remember Hormel was about a person who didn't say anything at all about anything.

[00:58:51] Speaker 04:
He just happened to be along for the ride.

[00:58:53] Speaker 04:
In this case, it's no different from that case in that sense anyway.

[00:58:57] Speaker 04:
Another issue, and this will be a very brief one, when the board says at the beginning of its oral argument that the employees did not appeal to stop using the services, it's correct they didn't use those words, but when the statements were made that were so indictful and so difficult relative to consumer perspective about these two organizations, clearly the intent was exactly the same.

[00:59:25] Speaker 04:
that they want the message to be sent to customers that these were bad employees.

[00:59:30] Speaker 04:
It seems very clear there's no way to get around that.

[00:59:33] Speaker 04:
Did they use the word stop using services?

[00:59:35] Speaker 04:
No, they did not.

[00:59:37] Speaker 07:
Well, they didn't want that because they wanted to keep their jobs.

[00:59:41] Speaker 07:
and get this pay thing resolved.

[00:59:43] Speaker 07:
That's the other way to look at it.

[00:59:45] Speaker 04:
I hear what you're saying, but if I wanted to keep my job, I don't think I would have worn my DirecTV uniform and taken my DirecTV truck on television to make those statements.

[00:59:54] Speaker 04:
But I understand what you're saying, Mr. Young.

[00:59:57] Speaker 04:
Thank you very much.

[01:00:07] Speaker 07:
If you have anything you wish to say for DirecTV, that's fine.

[01:00:10] Speaker 07:
If not, we will take the case under advisement.

[01:00:13] Speaker 05:
Your Honor, if I could just make one brief point.

[01:00:16] Speaker 05:
Sure.

[01:00:16] Speaker 05:
Council suggested that the employees could have said on this broadcast, this pay scheme, this compensation policy is unfair because it's really hard

[01:00:28] Speaker 05:
to meet this 50% goal, because landlines may not exist in the home, or the customer may disconnect it, or any other reason.

[01:00:37] Speaker 05:
But the fact of the matter is, the employees never mentioned a 50% goal.

[01:00:43] Speaker 05:
They said, if we don't lie to the customers, we lose money.

[01:00:47] Speaker 05:
So they never qualified it to say that there was even this 50% goal, which was a reasonable goal.

[01:00:54] Speaker 05:
Maztech was the lowest

[01:00:56] Speaker 05:
performing home service provider, any in the country, in terms of meeting that goal.

[01:01:01] Speaker 05:
So it was a reasonable goal.

[01:01:03] Speaker 05:
It was never mentioned.

[01:01:05] Speaker 07:
Thank you.